The Bid Protest Committee must be independent

Sep 24, 2016 Features / Columnists, Peeping Tom

The Public Procurement Act makes provision for the establishment of an independent Bid Protest Committee. The Procurement Act is clear on how the Committee should be established.
No member of Cabinet should sit on the Bid Protest Committee. The intention is for the Committee to be independent of government.
The law does provide for Government to appoint persons and logically those persons should not be part of either the tender evaluation process or of Cabinet, which, until the appointment of the Public Procurement Commission, still grants a no-objection on contracts.
So long as there is a system of no-objection being exercised by Cabinet in relation to contracts, a member of Cabinet should not be sitting on any Bid Protest Committee. There is a simple logic about why this should not happen.
If Cabinet grants no objection to a contract, then it means that Cabinet is in agreement with the award of the contract. A member of Cabinet therefore should not be sitting on any committee which is charged with reviewing a decision which Cabinet has approved by its no-objection. It is as simple as that.
Even when the Public Procurement Commission has been put in place, there is no need for a member of Cabinet to sit on any Bid Protest Committee, for the said reason that a member of Cabinet represents the government and it is the government that approves contracts and therefore a member of the government should not sit on a tribunal established as an independent body.
The present legislation does still allow government ministers to make appointments to the Bid Protest Committee. Those appointments should be guided by the principle that the Committee is expected to be independent.
Legislative changes may be needed to ensure that the appointments procedure achieves the ends to which it is intended. In the meantime there is no need for any government Minister to sit on the Bid Protest Committee, however fair-minded and honourable that person is.
The Public Procurement Commission was one of the main issues on which the APNU and the AFC opposed the PPP/C. The APNU and the AFC were adamant that the Public Procurement Commission should be established. They accused the PPP of filibustering on this issue.
The then PPP/C government indicated that it found the Public Procurement Commission, as established under the Public Procurement Act, to have powers not contemplated by the Constitution of Guyana.
This column is on record as supporting this assessment. Indeed, the role that the present parties in the ruling coalition assigned to the Public Procurement Commission does not seem to be supported by the role the Constitution ascribes for the Commission.
It is interesting that against this background, the PPP/C still went ahead and nominated persons for the Public Procurement Commission. It may be waiting on the actual appointment of the Commission before it files its long anticipated challenge to the Commission. It was hardly likely that the PPP/C, when it was in power, was going to bring the Commission into being and then challenge its own decision.
The PPPC has cooperated in providing for the establishment of the Commission. But for some strange reason, the government is yet to swear in the Commission.
The government has had time to swear in a tribunal but has not found it expedient to swear in the Commission. There may be some legal issues involved because there would seem to good reason why the government will be opposed to putting the Commission quickly in place.
In the meantime, it is important that those persons and entities that bid for government contracts have recourse to a Bid Protest Committee that is independent as provided for in the law.

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